Valentine Ventures, LLC et al v. Gulf Coast Mineral, LLC et al
Order granting 69 MOTION for Judgment on the Pleadings. The 56 Second Amended Complaint is stricken. Plaintiffs may file a third amended complaint by 6/17/2015. Signed by Chief Judge William H. Steele on 5/28/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
VALENTINE VENTURES, LLC, et al.,
GULF COAST MINERAL, LLC, et al.,
) CIVIL ACTION 14-0352-WS-M
This matter is before the Court on the defendants’ motion for judgment on
the pleadings. (Doc. 69). The parties have submitted briefs in support of their
respective positions, (Docs. 69, 73, 74, 77), and the motion is ripe for resolution.1
The operative pleading is the second amended complaint. (Doc. 56). This
pleading was filed in response to the Court’s order granting the defendants’
motion to dismiss the first amended complaint, which order also authorized the
plaintiffs to file a second amended complaint. (Doc. 50).
The Court found that the RICO and fraud claims (Counts I and III) were
due to be dismissed for failure to comply with Rule 9(b), and that the breach of
contract claim (Count II) was due to be dismissed for failure to allege the
plaintiffs’ performance under the parties’ contract. (Doc. 50 at 5-7). The Court
did not find the defendants’ objections to the remaining six counts (Counts IV-IX)
to merit dismissal. (Id. at 7-9). However, the Court did condemn the entire
amended complaint as a shotgun pleading and therefore dismissed the amended
complaint in its entirety. (Id. at 10-12).
As pointed out by the plaintiffs, the second amended complaint corrects
none of the deficiencies that resulted in dismissal of the first amended complaint.2
The plaintiffs’ motion for leave to amend their response, (Doc. 74), is granted.
The current iteration of the complaint adds a number of lengthy, rambling
paragraphs of factual allegations,3 but it does not provide the information required
by Rule 9(b), and it does not allege the plaintiffs’ performance under the parties’
contract. The plaintiffs’ response to the defendants’ motion (improperly) attempts
to provide factual allegations missing from the second amended complaint, but
even it fails to address the many holes in the pleading.4 In addition, the second
amended complaint is every bit the impermissible shotgun pleading its predecessor
was. Especially as burdened by the new factual material, the second amended
complaint also violates Rules 8(d)(1) and 10(b).5
“As we have stated on several occasions over the past twelve years, if, in
the face of a shotgun complaint, the defendant does not move the district court to
require a more definite statement, the court, in the exercise of its inherent power,
musts intervene sua sponte and order a repleader.” Byrne v. Nezhat, 261 F.3d
1075, 1133 (11th Cir. 2001). “Implicit in such instruction is the notion that if the
plaintiff fails to comply with the court’s order – by filing a repleader with the
same deficiency – the court should strike his pleading or, depending on the
circumstances, dismiss his case and consider the imposition of monetary
sanctions.” Id. The Court quoted this rule in its previous order, (Doc. 50 at 10),
and the plaintiffs could not possibly be unaware of it.
The second amended complaint does succeed in reducing the frequency with
which it lumps all five defendants together, though it still does so on some occasions.
Most of the new factual material is contained in paragraphs 15-20. These six
paragraphs stretch four full pages and include dozens of factual assertions not tied into a
The plaintiffs’ response, which simply quotes in extenso vast tracts of the
second amended complaint and injects additional factual material not found therein,
without any pretense of argument or defense of the pleading, does not instill confidence
in their ability to do so.
“Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).
“A party must state its claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” Id. Rule 10(b).
Because the plaintiffs have failed to comply with the Court’s order to file a
non-shotgun pleading, the second amended complaint is stricken in its entirety.
The plaintiffs may file a third amended complaint on or before June 17, 2015,
failing which the Court will enter final judgment in favor of the defendants. The
third amended complaint must correct the deficiencies identified in this order and
in the previous Court order. (Doc. 50).6 The Court does not anticipate extending
the plaintiffs any additional opportunities to file an acceptable pleading.
To the extent the defendants seek the relief set forth above, their motion is
granted. To the extent they seek other or additional relief, their motion is denied.
DONE and ORDERED this 28th day of May, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
These include, without limitation: (1) presenting a coherent, organized
(chronologically or otherwise) statement of facts that a non-participant in the underlying
transactions and communications can understand; (2) presenting these facts in brief,
comprehensible, numbered paragraphs; (3) collecting the facts in one section preceding
the listing of counts, rather than sprinkling them throughout the pleading; (4) under each
count, identifying individually the defendant(s) made defendants under that count; (5)
under each count, listing the specific numbered factual paragraphs that are relevant to that
count (incorporating all previous paragraphs is the defining characteristic of a shotgun
pleading); and (6) addressing the various other pleading deficiencies asserted by the
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